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Madam Justice Allan[1]
This article briefly explores three issues: (1) the outmoded legislation governing capacity in British Columbia (B.C.); (2) the first Canadian judicial education seminar dealing with elder law issues, primarily capacity; and (3) the need to educate medical professionals with respect to the legal process surrounding the determination of incapacity.
In B.C., as in all common law jurisdictions, there is a legal presumption that adults are capable of making the necessary decisions both with respect to themselves and with respect to their property. However, although legislative changes are expected within the next year or so, the relevant statute, the Patients Property Act[2] (the “PPA”) is paternalistic and protectionist in its nature and purpose. In B.C., the issue of whether or not adults lack the capacity[3] to make decisions with respect to their personal affairs and/or their property is determined under that Act. The mere title of the PPA, which refers to the adult in question as the “patient” suggests the likely outcome of any application by the Public Guardian and Trustee (“PGT”) or a private individual who might apply to become the “committee” (i.e., “parent-like” guardian) of the adult’s property or person. A “patient” is defined in s. 1:
(a) a person who is described as one who is, because of mental infirmity arising from disease, age or otherwise, incapable of managing his or her affairs, in a certificate signed by the director of a Provincial mental health care facility or psychiatric unit as defined in the Mental Health Act, or
(b) a person who is declared under this Act by a judge to be
(i) incapable of managing his or her affairs,
(ii) incapable of managing himself or herself, or
(iii) incapable of managing himself or herself or his or her affairs.
Applications to the Supreme Court under the PPA generally seek an order of committeeship on the basis that “the patient” lacks the necessary capability to manage herself -- or her affairs -- or both -- by reason of mental infirmity or disorder -- arising from disease, age or otherwise[4]. Less frequently, the Court will be asked to make an order that the patient is no longer incapable[5].
In other jurisdictions, notably Australia, New Zealand, Japan, some American states, and a few Canadian provinces, adult guardianship legislative reform has focused on the dignity and autonomy of the person with diminishing or diminished capacity. When measures are required to protect the adult, the steps taken are more nuanced and layered than our system of committeeship in B.C.
The more flexible provisions of modern adult guardianship legislative schemes generally provide decision-making assistance only in relation to decisions the adult is required to make but cannot. In contrast, the PPA provides no middle ground between an appointment of a committee and no intervention at all.
Although it is the Supreme Court of BC[6] that must make a legal determination of mental incapability, applications for committeeship must be supported by two opinions of qualified B.C. doctors that the “patient” is incapable. While Courts are respectful of the expertise of medical doctors, the latter’s opinions are not conclusive of a legal determination regarding capacity. It is ultimately the judge’s role to determine -- on all of the evidence -- whether the adult is capable or not capable of making the relevant decisions.[7]
In Canada, the National Judicial Institute is responsible for the continuing legal education of federally appointed judges. Each federal court holds one or more educational sessions each year.
In November 2005, for the first time, Elder Law was one of the topics covered in a Canadian judicial educational conference. That conference took place in Vancouver and was attended by the majority of the 103 B.C. Supreme Court judges. The purpose of the half-day session was to raise the awareness of judges of the issues involved in assessing capability and give them the tools to identify and resolve those issues. The programme commenced with the scary reality of the demographics of aging[8]. A panel then discussed the issue of capacity assessment under several headings: ethical issues[9]; assessment of incapacity: issues and techniques[10]; and tools for assessing capacity.[11] Drs. Kline and Rauscher, who dealt with the last issue, discussed best practices involved in the actual process of conducting a capacity assessment from a medical point of view. They emphasized the fact that capacity determination is task-specific and time-specific and stated that the assessor’s focus should be on maximizing the adult’s capacity by optimizing the circumstances of the assessment. It is vital that a medical opinion arising from the assessment focus on the adult’s capabilities with respect to the specific capacities in issue (e.g., money management, personal care). An instructive question is “from what harm are we seeking to protect this individual?”
Following the panel discussion, two of the judges and a lawyer “role-played” a hypothetical case involving a dispute relating to capacity: the PGT, who sought a declaration that an 86 year old woman was incapable of managing herself and her affairs by reason of mental incapacity, applied to be appointed committee of her person and her estate.[12] The judges then broke into small groups with facilitators to consider whether the PGT was entitled to the relief it sought and whether the adult should be required to submit to a further medical examination.
In the small groups, the judges worked through the many clinical, ethical and legal principles that guide a determination of capacity. In particular, they considered the following issues:
• Do judges bring preconceptions (e.g. in favour of the PGT) or unconscious biases (e.g. ageism or paternalism) to the issue of determining capacity of elderly adults?
• Is there a tendency of the courts to emphasize safety and protection over the autonomy of the adult?
• What is the Court’s role when there is a spectre of undue influence, abuse or exploitation?
• In light of conflicting medical evidence, which opinions were the best evidence of the adult’s capacity or incapacity?
It was extremely valuable for the judiciary to hear medical professionals discuss clinical best practices involved in gerontological capacity assessments. However, even the medical experts at the NJI conference expressed doubts that all doctors who perform capacity assessments have a clear understanding of either their role in assessing capability or the relationship between their opinions and the legal determination of capacity.
This concern is shared by lawyers who practice in this area. They perceive that doctors, who otherwise understand the elements of a good competency assessment and are alert to best practices in that area, too often lack any clear understanding of the legal or court process.[13] Many doctors incorrectly assume that committee applications, supported by the necessary medical opinions, are simply “rubber-stamped” by the Court. Some believe that, in appropriate circumstances (e.g. where the lawyer who retained them does not file their opinion in Court), they could write a letter to the judge, which would then have the weight of legal evidence. Some doctors fail to understand that their sworn affidavits, containing their opinion, constitute legal evidence and that they may be cross-examined on that evidence.
Doctors do not always appreciate the crucial fact that, at law, there is in every case a presumption of capacity and that presumption must be the starting point for an assessment.
Doctors often fail to understand their role. They must not be advocates or “hired guns” for the patient or for the lawyer who has hired them. Judges rely on the neutrality and expertise of these medical assessors. Too often, doctors believe that they “declare competence’ whereas that declaration is a judicial decision. The doctor’s role is limited to providing an “opinion” regarding incapability and the judge’s role is to make a legal determination of capability or incapability. The judge may reject some or all of the medical evidence after hearing all of the relevant evidence.
A medical opinion will be given little or no weight unless the facts and assumptions upon which the opinion is based are clearly articulated.
An opinion that is bolstered by a detailed description of the underlying clinical observations or test results will be given far more weight than an unsupported opinion. Failure to provide sufficient underlying facts will prevent the judge from weighing conflicting medical opinions.
Doctors should be aware of the provisions of the relevant legislation and the actual legal process and procedures. They should know that the subject adult will generally be served with notice of the application and may oppose it if he or she wishes to. An application for committee should never be “rubber stamped” by the judge who will be alive to the fact that a declaration of incapability results in the loss of that adult’s civil liberties. However, an application should move quickly through the court process if it is not opposed by the adult or anyone else.
If a judge received a letter from an assessing doctor, that letter would be a “red light” which might warrant halting the proceedings until the doctor’s concerns were properly addressed. However, any such letter could never be evidence in the case. The doctor’s evidence must either be given orally in court or be incorporated into an affidavit, upon which the doctor could be cross-examined. Affidavit evidence is taken as seriously as oral evidence given in the court room.
Further, when doctors are retained as experts on the issue of capability, they must not allow themselves to be pressured by the lawyer who retains them to make statements in their affidavits with which they are uncomfortable. The judge relies upon the doctor’s expertise and neutrality in expressing his or her opinion on the adult’s competence. In order to determine the weight to be given to a particular assessment of capacity, the Court is particularly interested in the following factors:
• Is the assessor a specialist or a general practitioner?
• How experienced is the assessor?
• How long did the assessment take?
• Was there more than one assessment?
• Where did the assessment take place?
• Was anyone else present?
• How comfortable was the adult? (health, time of day, nutrition, rest, etc.)
• Did the assessor take careful notes of the entire interview?
• Was there reliance on the Mini-Mental status test?
In summary, it is clear that both judges and lawyers benefit from learning the clinical aspects of capacity assessments; however, if the court process for the determination of capacity is to work properly doctors must also be educated in order to understand how their assessments actually fit into the legal and judicial procedures under the relevant legislation.
[1] Madam Justice Allan graduated from UBC with a BA in 1967. She received an MA in International Relations from the University of Alberta in 1970 and an LLB from UBC in 1977. She articled and then practiced civil litigation for 10 years at Russell and DuMoulin prior to her appointment to the County Court of Vancouver in 1988 and her elevation to the Supreme Court of British Columbia in 1990.
Madam Justice Allan has been a Deputy Judge of the Supreme Court of the Yukon Territory since 1990. She was an adjunct professor of civil procedure at UBC Law School between 1984 and 1988. Between 1994 and 1997, she was on the Faculty of the Canadian Institute for the Association of Judges’ annual seminar for newly appointed federal judges. She was a member of the BC Working Group of the Canadian Bar Association’s Civil Justice Task Force. She frequently participates in educational seminars on topics including evidence, family law, civil procedure, fiduciary obligations, personal injuries, and elder law.
For several years, she served as the judicial representative on the Board of Directors of Continuing Legal Education and, until September 1, 1998, chaired the Attorney General’s Rules Revision Committee. She was chair or co-chair of the BC Supreme Court Judges’ Computer Committee and Technology Committee for approximately 10 years. She was the BC Superior Court’s representative on the Judges Technology Advisory Committee, a committee of the Canadian Judicial Council, for several years.
Madam Justice Allan is a Learned Fellow of the Canadian Centre of Elder Law Studies.
[2] R.S.B.C. 1996. c. 349.
[3] In this article, the terms “incapacity” and “incapability” are used interchangeably, as are “capacity” and “capability”.
[4] Patients Property Act, RSBC 1996, c. 349, s. 3.
[5] Patients Property Act, s. 4.
[6] The highest level of trial courts in the province.
[7] In British Columbia (PGT of) v. Egli [2004] B.C.J. No. 796 (S.C.), 28 BCLR (4th) 375 (SC), Garson J. preferred the evidence of the subject adult’s wills and estates lawyer over that of his family doctor who had relied almost exclusively on the subject’s performance on a mini-mental test. She concluded that the adult had been competent when he executed a power of attorney on a particular date.
[8] Ann Soden, BCL, LLB, Founding Chair National Elder Law Section, Canadian Bar Association and Executive Director National Institute of Law, Policy and Aging.
[9] The Honourable Justice C. Adele Kent, Court of Queen’s Bench of Alberta
[10] Dr. Rob Gordon, Professor and Director School of Criminology Simon Fraser University
[11] Dr. Steve Kline is a Psychiatrist at St. Paul’s Hospital in Vancouver and Dr. Chris Rauscher is a Gerontologist at the Vancouver Coastal Health Authority.
[12] The facts were based on an actual case: Public Trustee of the Province of B.C. v. Dorothy Stewart Batiuk (1996) BCJ No. 2382; (1996) 7 C.P.C. (4th) 343; (1996) 15 E.T.R. (2d) 60 (B.C.S.C.) During the proceedings in that case, the Public Trustee proceeded only on its application to be appointed committee of her estate.
[13] These observations were confirmed by the author who recently attended a psychiatric gerontological conference in Vancouver to hear a psychiatrist, who was extremely competent and experienced in conducting capacity assessments, lecture on the topic of “Competency assessments in the elderly: a review of B.C. Law and Clinical Decision Making.”
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URL: http://www.austlii.edu.au/au/journals/ElderLawRw/2006/2.html